In this paper I attempt to address an interpretive difficulty that surrounds Hegel's position in the history of jurisprudence. After a brief overview of Hegel's project, I outline the first two sections of the Outlines of the Philosophy of Right in order to support my argument that Hegel advocates a natural law theory of legal validity. I then show that confusions regarding Hegel's place in the history of jurisprudence arise from his view that the ethical evaluation of laws is limited (with some exceptions) to procedural laws that govern the enactment and recognition of laws in the administration of justice. I end by providing Hegel's distinctive argument for legal publicity, which he takes to be essential for the enactment and recognition of valid law.

Which uses of the power to criminalise are misuses of that power? When, in other words, is an exercise of the power to create a criminal offence an exercise of that power which cannot be morally justified? This thesis seeks to provide one part of the answer, by addressing an aspect of the question little discussed by criminal law theorists. Thus it seeks not classes of conduct which it is impermissible to criminalise, nor classes of objective which offence-creators cannot permissibly pursue. Rather the thesis addresses the distinct issue of means – of how criminal offences (are set up to) bring about their creators’ objectives. It asks which means of achieving objectives it is impermissible to employ or make available, and how the power to criminalise must be used to avoid their employment or availability. In answering these questions the thesis distinguishes a number of types of criminal offence, by reference to the means by which the tokens of each (are set up to) achieve objectives. The argument is that to create tokens of these types is often to misuse power, because it is often to employ, or make available, impermissible means. This judgment of impermissibility is a function of a number of principles of political morality, some of which are developed at length in the course of the thesis. No single principle (or set of principles) is presented as an absolute limit on the power to criminalise; but each is part of a complete picture of how that power can permissibly be used, and contributes to vindicating the thesis defended within these pages. That thesis, to repeat, is that some uses of criminalisation are no better than misuses, on account of the means by which the resulting offences (are set up to) achieve their creators’ ends.

The problem of legitimate authority is widely regarded as fundamental to moral and political philosophy. This thesis aims to explain what the problem precisely is, and to offer a practical method for solving it. The starting point is a claim about the phenomenology of the person as an inherently authoritative agent: we are persons, as distinct from mere ‘things’, by virtue of the authority we possess over ourselves. This claim explains, I argue, why there is a problem of legitimate authority – why the exercise of state authority stands in need of justification – and what the problem precisely is: given the inherent tension between the authority of the state on the one hand, and the self-governing authority of persons on the other, the problem of legitimate authority is essentially that of creating the conditions for optimal reconciliation between them. The bulk of the thesis is devoted to a search for a solution to this problem. The ideal solution lies in developing a concept which I call the Authorization Principle. In its most basic form, the principle states that the exercise of state authority is legitimate only when it is exercised to enforce arrangements that all citizens authorize the state to enforce. The conclusion of the thesis is that the principle should be formulated as follows: The exercise of state authority is legitimate insofar as it is exercised within the provisions of a constitutional arrangement constructed through a process that gives equal weight to all the epistemically undefeated concerns in the society regarding the conditions necessary for persons to exercise personal authority. The solution proposed in the thesis for the problem of legitimate authority has three important implications. The first is that it is entirely within the capacity of ordinary democratic societies to solve the problem. The second is that there is no single legitimate way to govern a society. Standards for the legitimate use of state authority are in some way indexed to culture, ability and resources as well as to other aspects of a society’s unique circumstances. The third is that a society cannot settle the problem of legitimate authority once and for all. The state’s arrangement will require revision every so often in order to maintain the legitimacy of state authority.

An important question for general jurisprudence concerns method: what is the right way to form a philosophical understanding of law? Exploration of this question has, in one form or another, featured as a constant part of the work of those within the discipline, and many different answers have been given. The aim of this thesis is to argue that a controversial conception of philosophical method – as an investigation into our rule-bound conceptual practices and uses of language – is the appropriate means of understanding the nature of law. The first three chapters establish the initial connection between conceptual or linguistic analysis and the ability to gain insight into the social reality of law. I argue, in chapter one, that institutional concepts have a linguistic basis and, in chapters two and three, that legal systems are borne out of the shared use of certain basic concepts on the part of those who make up their law applying institutions, i.e. the courts. To understand the rules according to which such concepts are deployed, I suggest, is to understand the essential structure of legal practice. An assumption of that argument is tested in chapter four by considering Ronald Dworkin’s famous claim that certain forms of disagreement between lawyers and judges are incompatible with a picture of law dependent upon their agreement in the use of basic legal concepts. Chapter five takes up the question of whether the account of social ontology contained in the thesis is compatible with the fact of philosophical disagreement about the nature of law. Finally, chapters six and seven discuss alternate models of theoretical success in general jurisprudence, the first inspired by externalist views of linguistic and mental contents, and the second dependent upon a naturalistic conception of philosophy.

Abstract: In this dissertation, I propose a solution to Ronald Dworkin’s challenge from hard cases. Hard cases are cases in which the judges agree on the facts of the case and on what the posited law requires, but they disagree on what the law on the matter is. It is commonly thought that hard cases are decided on moral grounds, and that this problem raises the problem of explaining how the law can include unposited moral considerations. Dworkin argues that this problem generalizes, and that a theory of law must explain how all attempts to determine what the law is must make appeal to moral considerations. I argue that existing attempts to solve this problem fail. On the one hand, Dworkin argues that every attempt to determine what the law is must include an appeal to all moral considerations. This overstates the role of morality in law. Legal positivists, on the other hand, hold that moral considerations can be legally binding only when they are anticipated by the posited law. This understates the role of morality in law. By making the validity of moral considerations depend on the posited rules, inclusive positivists remain vulnerable to the possibility that a new hard case will arise that is not anticipated by the posited rules, but that the law can resolve nonetheless. And by excluding all moral considerations from law, exclusive positivists fail to explain law as we know it. Instead, I propose an alternative positivist solution to Dworkin’s challenge. First, legal positivists need not accept Dworkin’s understanding of source-based considerations as excluding all appeals to morality in their applications By econfiguring this problematic distinction, positivists can explain who the law can require frequent appeal to morality in the application of its rules. Secondly, I argue, the problem of hard cases is best understood as in instance of the prior problem of distinguishing legal rules from all other rules to which people are subject. And, I hold that Hart’s solution to this prior problem solves this problem as well. I thus conclude that the problem of hard cases poses no special threat to legal positivism.

Abstract: In this dissertation, I propose a solution to Ronald Dworkin’s challenge from hard cases. Hard cases are cases in which the judges agree on the facts of the case and on what the posited law requires, but they disagree on what the law on the matter is. It is commonly thought that hard cases are decided on moral grounds, and that this problem raises the problem of explaining how the law can include unposited moral considerations. Dworkin argues that this problem generalizes, and that a theory of law must explain how all attempts to determine what the law is must make appeal to moral considerations. I argue that existing attempts to solve this problem fail. On the one hand, Dworkin argues that every attempt to determine what the law is must include an appeal to all moral considerations. This overstates the role of morality in law. Legal positivists, on the other hand, hold that moral considerations can be legally binding only when they are anticipated by the posited law. This understates the role of morality in law. By making the validity of moral considerations depend on the posited rules, inclusive positivists remain vulnerable to the possibility that a new hard case will arise that is not anticipated by the posited rules, but that the law can resolve nonetheless. And by excluding all moral considerations from law, exclusive positivists fail to explain law as we know it. Instead, I propose an alternative positivist solution to Dworkin’s challenge. First, legal positivists need not accept Dworkin’s understanding of source-based considerations as excluding all appeals to morality in their applications By econfiguring this problematic distinction, positivists can explain who the law can require frequent appeal to morality in the application of its rules. Secondly, I argue, the problem of hard cases is best understood as in instance of the prior problem of distinguishing legal rules from all other rules to which people are subject. And, I hold that Hart’s solution to this prior problem solves this problem as well. I thus conclude that the problem of hard cases poses no special threat to legal positivism.

This thesis concerns the various concepts of rights and philosophical accounts of them. Chapter 1 addresses some methodological issues affecting analytic legal philosophy and the philosophy of rights. Chapter 2 distinguishes between two kinds of philosophical accounts of rights: models and theories. Models outline the 'conceptually basic' types of rights, their differences, and their relationships with other kinds of 'normative positions' (e.g., duties, liabilities, etc.). Theories of rights serve two roles: first, to posit a supposed ultimate purpose for all rights; second, to provide criteria for determining what counts as 'a right' in the first place. The chapter also criticises both monistic models (ones positing only a single basic kind) for being under-inclusive and a subset of pluralistic ones (those positing several basic kinds) as over-inclusive. Chapter 3 clarifies the concepts of rights exercise, enforcement, remedying, and vindication. Chapter 4 explains the Interest-Will Theories of rights debate, while Chapter 5 argues that its constituents are irredeemably flawed, unnecessary, and under-inclusive. Chapter 6 further analyses the concept of rights enforceability, showing why legal rights are not invariably enforceable by legal powers. It then explains why wholly unenforceable legal rights nonetheless constitute 'imperfect' or defective cases. Chapter 7 argues there are more ways to enforce legal rights than just via powers, elucidating two such modes: legal rights can generally be claimed or invoked using legal liberties in private and social circumstances. While Chapter 8 shows why it might not always be possible to make liberty-based claims or invocations of right, it also provides reasons for thinking that legal rights that cannot be enforced in these ways are also imperfect.

In this thesis, I address two issues. First, I reject the supposed conflict between international law and constitutional democracy. And second, I explore the role of international law in domestic constitutional law, particularly in Canada. In order to address both of these issues, I draw an analogy between the “Incompatibilist” critiques of international law and constitutional democracy, and the arguments against judicial review made by “the Critics” that Waluchow responds to in his book, A Common Law Theory of Judicial Review: the Living Tree. I argue that both the Incompatibilists and the Critics describe in-principle problems, structural problems, and decision-making problems in their respective critiques. The Incompatibilists are describing these problems in the context of the interaction between international law and constitutional democracies, while the Critics are focusing on constitutional judicial review, but I argue that the theory Waluchow presents as an answer to the Critics can also be directly applied to the Incompatibilists. Waluchow’s theory of common law judicial review and the community’s constitutional morality gives support and democratic legitimacy to judicial review in a domestic constitutional context. By applying his reasoning to cases involving international norms, I address problems in domestic courts’ application of international law and the democratic challenges they face. / Thesis / Master of Arts (MA)

A sound theory of adjudication and of judicial duty requires or presupposes a sound theory of law and of legal argument. Jurisprudential inquiry is properly grounded not in reflections on conceptual properties of law but in reflections on human goods and needs as understood in a morally articulated theory of practical reason and compactly expressed in the normative concept of the common good. Such reflections confirm that law exists, in its central case, as a means to various types of authoritative co-ordination solutions. The underdetermined nature of (a) the positive requirements of practical reasonableness and the common good and of (b) the appropriate means of enforcing compliance and remedying non-compliance with either these requirements or the determinate negative precepts of practical reasonableness entails that a practically necessary aspect of the positive law’s role is constituting the requirements of justice, i.e. of what is due to whom generally and in particular situations (including situations where an injustice has been or is alleged to have been done). As a distinct and practically necessary mode of legal co-ordination for the common good, adjudication, in its central case, answers litigated questions of justice by applying all relevant law in accordance with the legal system’s practice of legal argument. Thus adjudication is performed by authoritative law-applying institutions precisely because it is about answering questions of justice, and not despite that fact. Theories of law developed on the assumption that it is possible to understand the ‘what’ of law without reliance on any moral judgments deny any practically necessary connection between (a) the promotion of justice and the common good and (b) the nature of law, in its central case, and, hence, the adjudicative application of the law. In the absence of this connection a judicial duty to do justice according to law is unintelligible.

Problem: Although Oliver Wendell Holmes Jr. transformed American jurisprudence into critical self-awareness, there is no consensus on the nature of his legal theory. Holmes imperfectly represents each of several incompatible approaches. Commentators presume Holmes lacked any original or coherent theory of justice. Friedrich Nietzsche is likewise presumed a critical philosopher without a coherent theory of justice. Nietzsche wrote esoterically, but there is no consensus on the content of his esoteric agenda. Nietzsche's attitudes toward women appear misogynistic, but his philosophy paradoxically appeals to many feminists. Method: By re-conceptualizing Holmes and Nietzsche in terms of the principles of self-organized criticality, their understandings of causation and developmental dynamics become coherent. This thesis re-conceptualizes common-law legal reasoning as exploiting principles of self-organized criticality to build knowledge inductively. This reveals that Holmes and Nietzsche's genealogical critique of idealism rests on the computational implausibility of assuming there always exist microlevel rules to achieve desired macro-level goals. The legal-reasoning model shows that justice entails an inexhaustible open-system dynamic of applying limited resources to accommodate better an ever-broadening matrix of conflicting values. Nietzsche assesses psychological and social conditions that foster this collective creativity and decadent conditions that inhibit the growth of justice. Nietzsche identifies problems specific to institutions that require special safeguards that he esoterically conceals. Using Nietzsche's exoteric accounts of psychology and rhetoric based on principles of self-organized criticality, Nietzsche's esoteric techniques can be inferred, including his syncretism of pagan myths, which reveals his esoteric content. Conclusion: Holmes and Nietzsche applied a coherent theory of justice based on principles of causation and dynamics not widely accepted until the late twentieth century but having roots in ancient myths and isolated prior thinkers. Nietzsche defines justice as pursuing robust community growth without sacrificing the future for the present. Both Holmes and Nietzsche accord pursuit of justice with the good life whereby individuals promote their own development for greater sacrifice for the community. Nietzsche's esoteric solution to his problem of institutions was matriarchy. Nietzsche's matriarchy follows from his identification of the root of the institutional problem as male windfall opportunism, an evolved unconscious male tendency resulting from uncertainty over genetic parentage.